1 1 VOLUME I STATE OF FLORIDA 2 DIVISION OF ADMINISTRATIVE HEARINGS 3 SUGAR CANE GROWERS COOPERATIVE OF FLORIDA, INC., ROTH FARMS, INC., 4 and WEDGWORTH FARMS, INC., 5 and 6 FLORIDA SUGAR CANE LEAGUE, INC., UNITED STATES SUGAR CORPORATION, 7 and NEW HOPE SOUTH, INC., 8 and 9 FLORIDA FRUIT AND VEGETABLE CASE NOs. 92-3038 ASSOCIATION, LEWIS POPE FARMS, 92-3039 10 W.E. SCHLECHTER & SONS, INC., and 92-3040 HUNDLEY FARMS, INC., 11 Petitioners, 12 vs. 13 SOUTH FLORIDA WATER MANAGEMENT 14 DISTRICT, 15 Respondent, 16 and 17 MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, the UNITED STATES OF 18 AMERICA, FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and 19 FLORIDA WILDLIFE FEDERATION, 20 Intervenors. . . . . . . . . . . . . . . . . . . . / 21 22 23 DEPOSITION OF ROXANE R. DOW 24 November 23, 1992 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 2 1 2 DEPOSITION OF ROXANE R. DOW 3 Taken in the above-styled cause, pursuant to 4 notice, at the Department of Environmental Regulation, 2600 5 Blair Stone Road, Tallahassee, Florida, on November 23, 6 1992, commencing at 9:30 a.m. 7 8 Reported by: 9 DEBRA ROTRUCK KRICK 10 Court Reporter 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 3 1 APPEARANCES OF COUNSEL: 2 On behalf of the Petitioners Sugar Cane Growers Cooperative of Florida, Inc., Roth Farms, Inc., and Wedgworth Farms, 3 Inc.: 4 William H. Green, Esq. Hopping Boyd Green and Sams 5 123 South Calhoun Street Tallahassee, FL 32301 6 On behalf of the Petitioners Florida Sugar Cane League, 7 Inc., United States Sugar Corporation and New Hope South, Inc.: 8 William L. Hyde, Esq. 9 Peeples, Earl & Blank 215 South Monroe Street 10 Suite 350 Tallahassee, FL 32301 11 On behalf of the Intervenor United States of America: 12 Keith E. Saxe, Esq. 13 United States Department of Justice Environment & Natural Resources Division 14 601 Pennsylvania Avenue NW Washington, D.C. 20044 15 On behalf of the Intervenor Department of Environmental 16 Regulation: 17 Keith Hetrick, Esq. Assistant General Counsel 18 State of Florida Department of Environmental Regulation 19 Twin Towers Office Building 2600 Blair Stone Road 20 Tallahassee, FL 32399-2400 21 Also appearing: Randy Armstrong 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 4 1 INDEX TO WITNESS 2 ROXANE R. DOW PAGE 3 Examination by Mr. Hyde 5 4 INDEX TO EXHIBITS 5 No. MARKED 6 1 12 7 2 12 8 3 75 9 4 77 10 5 120 11 6 123 12 7 127 13 8 130 14 9 141 15 10 143 16 11 152 17 18 19 20 21 22 23 24 25 A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 5 1 D E P O S I T I O N 2 Whereupon, 3 ROXANE DOW 4 was called as a witness, having been first duly sworn to 5 speak the truth, the whole truth, and nothing but the 6 truth, was examined and testified as follows: 7 EXAMINATION 8 BY MR. HYDE: 9 Q Would you please state your name and address for 10 the record, please? 11 A Yes, my name is Roxane, R-o-x-a-n-e, middle 12 initial, R., Dow, D-o-w. I live at 1916, East Indianhead, 13 one word, Drive, Tallahassee, 32301. 14 Q Ms. Dow, my name is Bill Hyde. I am here on 15 behalf of the Florida Sugar Cane League, the U.S. Sugar 16 Corporation and New Hope South, Inc., and with me today is 17 Randall Armstrong who is just walking in the room, and Bill 18 Green is here on behalf of the Sugar Cane Growers 19 Cooperative. 20 I will be asking you a series of questions today 21 about your anticipated testimony in an upcoming hearing on 22 the Everglades SWIM Plan which was adopted by the governing 23 board of the South Florida Water Management District. For 24 purposes of my questions, I will just simply be referring 25 to the Water Management District as the District as opposed A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 6 1 to saying their entire name each time. The Department, of 2 course, will be DER, and other appropriate acronyms and 3 abbreviations will be utilized as well. 4 During the course of my questioning if you do not 5 understand the gist of the question or if you need further 6 clarification, please tell me so, and I will try to 7 rephrase the question and see if it provides you with any 8 additional information you need to frame an answer. If any 9 of the attorneys object at any time to a question, I will 10 ask you to please offer your testimony at that time and let 11 us thrash out the objection and then we can resume the 12 deposition. Do you understand all of that? 13 A That's fine. 14 Q Okay. Ms. Dow, did you receive a notice of taking 15 deposition I think dated November 4, 1992? 16 A I received a notice. I couldn't swear to what the 17 date was on it. 18 Q Did you review the documents that were listed in 19 that document that we had requested you to produce in 20 connection with this deposition? 21 A I did not go through my files as a result of 22 receiving that summons, no. I had collected those kind of 23 documents before and previously supplied them. I just went 24 down the list to make sure that I had included the things 25 that I thought was included and pointed out to the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 7 1 attorneys what I thought may not be included. 2 Q Okay. Did you withhold any documents from the 3 list of documents that were requested? 4 A Well, I discussed with them whether or not I 5 needed to produce every document on water quality standards 6 that I had ever seen cross my desk, which would have 7 involved 10 years of work here, and I believe we have 8 agreed I didn't need to produce everything on every water 9 quality standard that ever crossed my desk. 10 Q I think Paul Parks did. He produced his 11 documents. 12 Let me just go through these categories just to 13 make sure that we have covered everything. The first is 14 any and all documents relied upon in preparing, 15 formulating, developing, authoring, co-authoring, reviewing 16 and/or organizing anticipated expert testimony related to 17 the subject matter of this action. 18 A Yes. 19 Q Okay. Number two, any and all documents relied 20 upon in preparing, formulating, developing, authoring, 21 co-authoring, reviewing and/or organizing anticipated 22 expert testimony related to Ms. Dow's opinion that the 23 strategies proposed by the SWIM Plan meet the objectives of 24 the SWIN Act and the scientific data that supports those 25 strategies. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 8 1 A Yes. 2 (Discussion off the record.) 3 BY MR. HYDE: 4 Q Number three, any and all documents relied upon in 5 preparing, formulating, developing, authoring, 6 co-authoring, reviewing and/or organizing anticipated 7 expert testimony related to water quality standards being 8 violated in the Everglades. 9 A Yes. 10 Q Okay. You know, instead of reading all of these 11 maybe I could just go through, you know, you could look at 12 the numbers and tell me whether all of those documents have 13 been prepared. 14 A The other issue that we discussed that I, you 15 know, that we need to make sure you understand, I do not 16 handle this, I am not a technical biological or chemical 17 expert, and I do not have documents that relate to those 18 kinds of issue. 19 My documents, my files and the files that, you 20 know, I left in the Bureau when I left, which are produced 21 probably under Bart's request, have to do with supervising, 22 you know, resolving issues between employees over decisions 23 to be made on the SWIM document. I am not a technical 24 witness and don't have documents related to the biological 25 changes in the Everglades or the computer records on A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 9 1 phosphorous levels or those kinds of things, so those were 2 the two issues that we discussed in the summons. 3 Q Are any of those documents that apparently are in 4 Mr. Bibler's custody right now documents that you prepared 5 or created as opposed to maybe a document that you simply 6 reviewed at some point in the context of the Everglades 7 SWIM Plan? 8 A I honestly don't know. I mean I left the bureau 9 chief's files with the bureau chief's position, and as that 10 organization got splintered and redivided and sent other 11 places, those files went with the appropriate people. 12 Q Okay. When did you leave the Bureau? 13 A Well, I left the Bureau early this year. The SWIM 14 program left the Bureau before that in a reorganization. It 15 went to the Secretary's Office and became a part of 16 intergovernmental programs and took the SWIM and coastal 17 zone management functions with it. So I don't remember 18 exactly when it left, but at some point in I think '91 it 19 became a different part of the DER and not a part of the 20 Bureau of Surface Water Management. 21 Q Well, who currently has the custody of your former 22 documents? 23 A Bart Bibler. 24 Q Is he the only person that we would look to for 25 that? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 10 1 A Unless he gave them away since I left. 2 (Discussion off the record.) 3 BY MR. HYDE: 4 Q Back on the record. Ms. Dow, what sort of 5 documents that you have created would be in the files that 6 you turned over to Mr. Bibler? 7 A I was just trying to think. I did not do general 8 creation of documents as a rule. I mean, there may be some 9 notes from a discussion with a staff member or some 10 comments on rewording of the documents, but I did not, I 11 was not in the habit of preparing draft letters, I was not 12 in the habit of even preparing memos. Generally my 13 dealings with these things took place, you know, in a 14 meeting with one or more staff in order to make sure that 15 whatever was produced was clear. 16 MR. HYDE: Okay. Let me suggest that we deal with 17 it this way, and I hope that this won't even be a 18 necessary alternative at such time in the future. I 19 trust and expect that all such documents will be 20 produced when we depose Mr. Bibler or as this objection 21 notes that Tom Swihart, and if at such time we 22 encounter some documents that are of a substantive 23 nature and they are Roxane's documents, then we would 24 like to reserve the opportunity to question Ms. Dow 25 again about those documents if indeed it is necessary. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 11 1 I don't anticipate that that would be necessary, but I 2 am concerned about the effect of our discovery and 3 scheduling order which to date hasn't been changed and 4 I believe most of the parties are operating under the 5 assumption that people will be deposed once and just 6 once absent unusual circumstances. This may be such an 7 unusual circumstance, I don't know, but I would just 8 like to, you know, make that reservation for a later 9 opportunity should the need arise. 10 MR. HETRICK: I will agree to that. 11 MR. HYDE: Okay. I guess we can move on to that 12 point. 13 BY MR. HYDE: 14 Q I think I may have already asked this question, 15 but I want to make sure I understand the answer. Have any 16 documents been specifically withheld on the basis of any 17 claimed privilege such as an attorney/client privilege or 18 work product privilege at the instruction of your 19 attorneys? 20 A None of the documents in my possession have been 21 withheld. 22 MR. HETRICK: I want to make a point clear. We 23 have withheld some of her documents, and we will 24 provide you with a list of those documents. 25 MR. HYDE: When do you anticipate we will be able A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 12 1 to get that? 2 MR. HETRICK: You will be able to get that this 3 week. 4 MR. HYDE: Okay. By Wednesday? 5 MR. HETRICK: Yes. 6 MR. HYDE: Okay. 7 BY MR. HYDE: 8 Q I guess enough on that score. 9 I would like to ask you a few questions about 10 your background, Ms. Dow. You're, first of all let me have 11 you identify a document. Let's label it Exhibit 1. 12 (Whereupon, Exhibit No. 1 was marked for 13 identification.) 14 BY MR. HYDE: 15 Q Could you please identify Exhibit 1? 16 A Yes, that's my vitae. 17 Q Okay. Is that your current vitae? 18 A Let's see, yes. 19 Q Okay. 20 MR. GREEN: Do you have extra copies, Bill? 21 MR. HYDE: Yes, I do. 22 MR. SAXE: Thank you. 23 BY MR. HYDE: 24 Q Would you please identify Exhibit 2? 25 (Whereupon, Exhibit No. 2 was marked for A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 13 1 identification.) 2 BY MR. HYDE: 3 Q Have you seen that document before? 4 A Looks like an old vitae. 5 Q Okay. Would you regard this Exhibit 2 as having 6 been supplanted by Exhibit 1? 7 A Yes. 8 Q Okay. Let's refer back to Exhibit 1, then, if you 9 will. 10 MR. SAXE: Excuse me, Counsel, copies of the 11 second exhibit? 12 MR. HYDE: Yes. 13 BY MR. HYDE: 14 Q Okay. When did you, would you begin with your 15 educational background beginning with your degree from 16 college. I note that you have a degree in botany from the 17 University of South Florida. 18 A That's correct. 19 Q Was there any specific area in which that degree 20 was obtained or was botany just the category that it was 21 offered in? 22 A The title of the college was I believe botany and 23 bacteriology, actually. My Bachelor's degree was in botany 24 and is primarily plant anatomy kinds of interests. My 25 Master's degree had to do with microbes and their reaction A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 14 1 to, my Master's thesis had do with microbes and their 2 reaction to antibiotics as measured in a microcalorimeter. 3 It is definitely a more of a bacteriology microbial bent 4 than the botany -- 5 Q Okay. 6 A -- the plant identification end. 7 Q Could you explain in a little more detail just the 8 nature of your Master's thesis? That description didn't 9 tell me an awful lot because I am not a scientist. 10 A A microcalorimeter is a machine that measures 11 minute changes in heat, and we used very dilute solutions 12 of various pathogens and exposed them to antibiotics to see 13 if we could detect by their heat response whether the 14 antibiotic was killing them or not in an attempt to find a 15 quicker medical technique determining what kind of 16 antibiotic to give you should you come down ill with a 17 bacterial disease. 18 Q Did you take any subsequent graduate courses after 19 you obtained your Master's degree? 20 A Oh, I took a course in hydrology, I took a couple 21 of computer courses. I mean I picked up some sort of 22 environmental sciences courses here and there as I have 23 moved around the state -- nothing particularly related to a 24 degree or even an academic curriculum, just sort of general 25 background kinds of courses. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 15 1 Q Have you taught any courses since obtaining your 2 Master's degree? 3 A I have taught classes in courses, I haven't 4 actually been an instructor for a course. 5 Q When you say you have taught classes in courses, 6 is this at a university or in a university setting? 7 A Yes. 8 Q Which university was that? 9 A Edison Community College, FSU and Lively Voc-Tech. 10 Q Where, give me a representative example of the 11 kind of classes you taught and those circumstances? 12 A Oh, in a basic sort of environmental consciousness 13 raising -- how stormwater, you know, involves you in your 14 life and your habits. Typically there would be, you know, 15 what is, what does a state government person do who has a 16 degree in a science, and why might you want to pursue this 17 kind of curriculum so that you could have a job like mine 18 or like one that I would describe. 19 Q Would you consider these classes to be 20 non-technical in nature? 21 A Oh, often they were in a technical course, but 22 they were not particularly designed to teach somebody hard 23 science. 24 Q Okay. Once you obtained your Master's degree 25 would you start listing for me what your job positions, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 16 1 jobs that have been related to your degree? 2 A As soon as I got my Master's degree, I went, 3 returned home to Orlando and operated the family owned 4 laboratory called DOW-LAB Research from, all of, well -- 5 all of '76 and the first couple months of '77. Then I got 6 a job at the district office for DER in Fort Myers working 7 in compliance and enforcement in industrial and domestic 8 waste. 9 Q Was that, would you review permits in that 10 position or was that an enforcement type position? 11 A I reviewed permits to the extent of what did I 12 need to know in order to determine whether an applicant or 13 a permit holder was in compliance or not, but I did not 14 write permits, I did not review permit applications. I was 15 a compliance assurance and enforcements person. I wrote 16 people up for violating their permits. 17 Q Okay. How long did you stay in that position? 18 A Until February of '78. 19 Q Okay. And then what was your next position? 20 A Then I did the same sort of thing, plus permitting 21 for solid waste for six months in the Fort Myers office. 22 Q Why did you make that job transition? 23 A It was considered a promotion. 24 Q Okay. At the end of your six month period in 25 reviewing solid waste matters, what did you do? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 17 1 A Then I got a real promotion to do drinking water 2 compliance assurance and enforcement and water well 3 permitting. 4 Q Was that also in the Southwest District office? 5 A That was also in Fort Myers. 6 Q How long did you stay in that position? 7 A Until May of '79. 8 Q What did you do in May of 1979? 9 A I made the big jump to Tallahassee. 10 Q Was that considered a promotion at that time? 11 A Well, if I recall, it wasn't much of a promotion, 12 but it got me out of an office in which there was no 13 opportunity for further advancement to an office in which 14 there was opportunity for further advancement, so, yes, it 15 was a promotion. 16 Q Okay. And what did you begin doing up here in 17 Tallahassee at that time? 18 A And then I was the training coordinator for the 19 water and waste water certification sections here in 20 Tallahassee, statewide assistance to the universities and 21 the vocational schools that did training, certification of 22 those training programs that were eligible for being 23 counted as credit for people who needed operator 24 certification. 25 Q Okay. How long did you stay in that position? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 18 1 A Until November of '79. I recall that was six 2 months, too. 3 Q Okay. And then where did you go? 4 A And then I went to the office of the deputy 5 director for permits. I think it was just called 6 permitting then. I was the water quality assistant in the 7 Division office. There were four of us, each program 8 aligned. I was the water quality assistant. We did sort 9 of everything that was necessary to prepare background 10 materials and brief the deputy and the division director 11 and things to coordinate primarily between the District 12 offices activities and the division of programs and any 13 decisions that would be being funneled up to the 14 Secretarial level. 15 Q Who was the director of permitting at that time? 16 A Steve Fox. 17 Q Okay. And how long did you stay in that position? 18 A Stayed there until October of '84. 19 Q And at that time what did you transfer to? 20 A I became, I was selected to be the chief of the 21 Bureau of Surface Water Management. 22 Q Was that a newly-created position? 23 A No. 24 Q Okay. What did your duties in that position 25 entail? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 19 1 A Let's see, when I first became bureau chief we had 2 the stormwater sections, we had the quality assurance and 3 monitoring sections and we had the point source 4 evaluation -- I forget what it was called, but it wasn't 5 called point source evaluation back there, but it is, 6 that's what it is now, -- doing waste load allocations and 7 assisting in determining effluent limits for point sources. 8 Q And I believe you stayed in at that position until 9 earlier this year, is that correct? 10 A That's right. 11 Q Why did you, well, why did you change job 12 positions at that time? 13 A I was tired of being bureau chief. There was a 14 new position created, it was called a federal coordinator, 15 it had activities and duties that were appealing to me, and 16 it was in the Secretary's Office. It was something that I 17 considered a promotion for myself. 18 Q Okay. In your former position as the bureau 19 chief, who was your supervisor? 20 A Well, I had many supervisors. 21 Q To whom did you specifically answer? 22 A I am sorry, the position, I reported to the 23 Division of Water Management division director. 24 Q Who was that person? 25 A When I left it was Mark Latch. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 20 1 Q Okay. Is it someone different now? 2 A No, it is still Mark Latch. 3 Q Okay. In your current position to whom do you 4 report or who is your supervisor? 5 A I report to the Assistant Secretary. 6 Q And that is? 7 A Dana Minerva. 8 Q Okay. During the course of your employment with 9 the Department have you been asked to testify as an expert 10 witness in administrative or judicial proceedings? 11 A Yes. 12 Q And have you been qualified as an expert in 13 administrative or judicial proceedings? 14 A I was qualified as an expert, I believe twice. I 15 can't actually tell you in what. 16 Q Okay. Do you remember what those hearings were 17 about? First of all were they administrative or judicial 18 proceedings? 19 A Administrative. 20 Q Okay. Do you recall whether they were a 21 permitting or enforcement type of proceeding? 22 A Sanford was a permitting. 23 Q Is that the City of Sanford? 24 A City of Sanford, yes. I can't remember what the 25 other one was. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 21 1 Q Okay. Do you remember who the parties were to 2 that other proceeding? 3 A Not right offhand. I will think of it, but -- 4 Q Okay. Do you remember the general subject matter 5 of that second hearing? 6 A Well, it dealt with water quality standards -- 7 Q Okay. 8 A -- that type of thing. 9 Q Okay. The City of Sanford case, what was it 10 about? 11 A It was about whether not their sewage treatment 12 plant could be permitted under the scenario that they 13 requested or not. 14 Q Okay. Was this a circumstance where the 15 Department denied or proposed to deny the City a request to 16 permit, or was it one where a third party was challenging 17 the issuance of a permit? 18 A It had to do with the Department's proposed 19 denial. 20 Q Okay. Do you recall why the Department wanted to 21 deny that permit? 22 A Yes, because there were documented water quality 23 violations and they were contributing to them. 24 Q Okay. When you say documented water quality 25 violations, were you speaking of a given surface water A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 22 1 body? 2 A Yes, Lake Monroe. 3 Q Okay. What, if you recall, were those water 4 quality violations? 5 A I don't remember all of them. I know dissolved 6 oxygen was one. 7 Q Okay. Were they nutrient-related -- 8 A Yes. 9 Q -- problems? 10 A Probably among others beings, but -- 11 Q What did the, what, if anything, was the 12 Department trying get the City of Sanford to do other than 13 simply to deny their permit? Were they urging the City to 14 go to some alternative process of treatment or ultimate 15 disposal of the treated effluent? 16 A The Department was interested in having a permit 17 application that they could approve. How the City of 18 Sanford resolved meeting state requirements is the business 19 of the City of Sanford and their consultants. 20 Q So you were waiting for the City to make a 21 proposal? 22 A Yes. 23 Q Do you recall how that permit proceeding was 24 resolved? 25 A No. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 23 1 Q Did it actually go to a final hearing where you 2 offered testimony? 3 A Oh, yes. 4 Q Okay. But you don't recall the results of that 5 proceeding? 6 A It was resolved somehow. 7 Q Okay. Do you recall what year that proceeding 8 occurred in? 9 A No, it was early, fairly early in my tenure as 10 bureau chief because it still, you know, that section 11 didn't work for me for all that long, but I don't remember 12 the exact date. 13 Q Okay. Do you recall whether the Department 14 considered or entertained the establishment of water 15 quality based effluent limitations for that permit? 16 A Well, we looked at whether the proposed effluent 17 limits in the permit application would meet water quality 18 standards, so that's the same process as coming up with a 19 water quality based effluent limitation. 20 Q Well, did the Department go through the relatively 21 formal process by which one establishes a QBEL, that's 22 Q-B-E-L, acronym for water quality based effluent 23 limitations? 24 A Well, we would have cranked through the same 25 process, yes. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 24 1 Q Okay. And was that the basis of the Department's 2 determination that, or did the Department determine that 3 those effluent limitations were inadequate? 4 A Yes. 5 Q Okay. The other proceeding that you referred to a 6 few moments ago, was that also a sewage treatment plant 7 permit proceeding? 8 A I honestly don't recall. I just remember sitting 9 there in the witness stand, and I don't remember precisely 10 which of the hundreds of issues I dealt with it was. 11 Q Was it, too, a permitting proceeding as opposed to 12 an enforcement proceeding? 13 A I just don't recall. 14 Q Okay. Have you been asked to prepare any 15 testimony for the proceeding for which this deposition has 16 been noticed? 17 A No. 18 Q Okay. Have you formed any opinions concerning 19 this proceeding specifically regarding the Everglades SWIM 20 Plan that has been adopted by the governing board of the 21 water management district? 22 A Are you asking if I have formed an opinion 23 specifically on the SWIM Plan? 24 Q Yes. 25 A Well, at the time -- the last time I reviewed A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 25 1 where we were at with the SWIM Plan, I believed that we had 2 gotten a document that was approvable under the statute and 3 rule that we had to approve the SWIM Plan. 4 Q Okay. 5 (Discussion off the record.) 6 MR. GREEN: Keith, you just asked whether I had 7 the same understanding that you did, that Ms. Dow just 8 testified concerning compliance of the SWIM Plan with 9 the appropriate statutes, and I can't really answer 10 that because I don't know what draft she was speaking 11 of and which provisions, and I guess Mr. Hyde is going 12 to explore that now. 13 MR. HETRICK: I mean, that's the way I see it. Do 14 you have any different, I mean, that's why we are here, 15 you know, to find out how she, or I guess that's why 16 you're here is to find out how she arrived at that 17 opinion. 18 MR. HYDE: Well, I am frankly just a bit concerned 19 that we are starting to see a trend here in the 20 Department's witness, and I am not accusing anyone of 21 any bad faith at this point, it just appears to me that 22 what we are doing here doesn't meet the true intent of 23 the discovery and scheduling orders which the witnesses 24 are to have their opinions formulated at such time as 25 they're deposed, and I will attempt to question Ms. Dow A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 26 1 about what she's done in this regard, but I must state 2 that I am concerned about whether, and the extent to 3 which we are dealing with today final opinions that may 4 be offered by this witness at a final hearing in this 5 case. 6 MR. HETRICK: Let me just say one thing and you 7 can explore this, and I don't want to put words in your 8 mouth, but I think that that document, the witness 9 designation document, that you have before you, that 10 she's going to testify as to water quality standards 11 that she has knowledge of, give her expert opinion 12 regarding those as they apply to the SWIM Plan. She 13 can certainly testify as to various draft versions that 14 lead up to her opinion that I think she just testified 15 to, and that is that SWIM Plan is consistent with the 16 rules and the statutes based on her understanding of 17 the statutes. 18 She is here to give a global perspective on that 19 and that's her opinion that she's arrived at based on 20 her analysis of the rules and the statutes, and that's 21 what I think you're here to explore. If it, if you, I 22 mean I -- 23 MR. HYDE: Well, let's me just begin asking some 24 questions, and if we encounter some problems, I will 25 note them and we can discuss them at a later point. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 27 1 BY MR. HYDE: 2 Q Ms. Dow, the Department's witness designation 3 essentially states that you will be testifying that the 4 Everglades SWIM Plan that has been prepared by the District 5 is consistent with the objectives and requirements of the 6 SWIN Act and applicable rules. I know what the SWIN Act 7 is, what are the applicable rules that you have ruled for a 8 consistency determination? 9 A Well, essentially you have 17-43 which deals, 10 which is the administrative rule regarding how the 11 Department and the Water Management Districts implement the 12 SWIM program. Then the other ones that you are going to be 13 concerned on are 17-40 which is the State water policy 14 which refers back to the water quality standards rule. 15 Q Is that rule 17-302 -- 16 A Yes. 17 Q -- State water quality standards? 18 A Yes. 19 Q Okay. 20 A And perhaps others, but that was the one that 21 primarily concerned us and then the State comprehensive 22 plan. 23 Q When you considered the compliance with the State 24 water quality standards did you also consider the 25 outstanding Florida water provisions that are contained in A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 28 1 17-4 -- .242, or is it 244? 2 A I don't believe that's where they are anymore, but 3 yes, it did include the OFW. 4 Q Okay. Where are they? 5 A I think they're 302 now too. 6 Q Okay. I guess I need to look at the standards 7 more frequently. 8 A Got to keep up with it. 9 (Discussion off the record.) 10 BY MR. HYDE: 11 Q How did you go about making a determination that 12 the Everglades SWIM Plan complied with the provisions of 13 rule 17-43? 14 A Well, 43 is an administrative type rule that plays 15 out who does what when, what the factors are that have to 16 be considered at each juncture. 17 Q Is 17-43 sort of like a check list rule where you 18 go through the various steps, where you make certain that 19 various elements are included in the SWIM Plan as opposed 20 to a substantive review of that plan? 21 A I think that's a debatable statement. When we 22 wrote the rule there was quite a bit of debate about how 23 much further the rule should go than what the statute said, 24 and what kinds of additional direction the Department 25 should give. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 29 1 There was a great deal of concern that the beauty 2 of the SWIM program was that it was to be an overreaching, 3 integrating kind of planning exercise, and that it was to 4 be very specific for each water body. So the more 5 parameters you put in the rule, the less likely you were to 6 succeed at having a truly water body specific kind of 7 document. So the rule in effect is a pretty bare bones 8 kind of outlining of procedures, timing, who does what, and 9 I personally think weak on substance. Other people will 10 argue that it has more than enough substance in it. 11 We also had adopted as part of that a procedures 12 manual where we very specifically gave staff direction in 13 the procedures manual and let other people know how we 14 would be handling the distribution of copies, who would 15 review, how much time they would have, those kinds of 16 mechanical things. So there was a great deal of interest 17 on the part of at least the water management districts -- I 18 don't really recall that any other parties particularly 19 cared -- but to know specifically how the paper would flow 20 and what the restrictions would be in terms of timing on 21 review comments. 22 Q Were you the person who is responsible for making 23 the determination the Everglades SWIM Plan complied with 24 rule 17-43? 25 A Oh, it was definitely a group consensus approach. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 30 1 I was a party to those discussions as I was in every other 2 SWIM Plan that came through, but usually only to the extent 3 that there were issues that had not been resolved through 4 the consensus process and the comments. It was very rare 5 for there to be an issue outstanding at the time of formal 6 review of a SWIM Plan that had not been resolved in prior 7 discussions. 8 Q Did this consistency determination take place for 9 each of the various earlier drafts or iterations of the 10 Everglades SWIM Plan? 11 A This, particularly the Swim coordinators for each 12 water body always tried to make sure that the broad aspects 13 of the plan were being addressed as the early stages went 14 through. That was why we appointed individuals as SWIM 15 coordinators to make sure that we would have plans that 16 didn't leave out required aspects and that were in fact as 17 global as possible. There was a great tendency in the 18 early stages to get bogged down in doing the easy stuff or 19 the obvious stuff or the stuff that had been done before 20 and not truly be an overall plan that would eventually 21 result in significant improvement in the given water body. 22 Q Are you aware of any documents that you or anyone 23 else with the Department created which would reflect the 24 Department's determination of consistency with rule 17-43? 25 A There were formal memos from the staff A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 31 1 specifically if there were problems. If there were not any 2 problems they would generally draft a letter that approved 3 it. 4 Q Okay. And this would be true for each earlier 5 iteration of the SWIM Plan? 6 A Well, they wouldn't have done it in the terms of a 7 formal review for an early draft. They were sent a draft 8 for review as project coordinator. They would directly 9 communicate with the project coordinator in the District as 10 to any problems that they would see. 11 Q Okay. What about rule 17-40, the State water 12 plan, were you the person who was responsible for making 13 that consistency determination? 14 A State water policy. 15 Q Excuse me? 16 A Again the staff would do the preliminary and early 17 reviews. They would look for probable areas, they would 18 try to point out to the water management district project 19 coordinator if there were aspects that they thought that 20 they were running shy on. Water policy is not as precise 21 as it might be, so they were generally matters debated 22 among the staff and consensus was again reached. It was 23 their jobs to make sure that consensus was reached before 24 the formal review took place if at all possible. 25 Q Who was on the staff that made that review? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 32 1 A Well, all of the SWIM coordinators worked for 2 Bart Bibler under me, the Everglades staff I believe 3 started with Peggy Mathews, and I think when she left it 4 had to be picked up by Gail Sloane. 5 Q Gail Sloane? 6 A Sloane. 7 Mr. Bibler was particularly involved in the 8 Everglades Plan since we knew it was going to be more 9 controversial than probably any of the others that we had 10 previously approved. There were review staff from the 11 District office, primarily Herb Zebler -- 12 Q Herb Zebler? 13 A -- Zebler -- and people in the Division of Water 14 Facilities. The Bureau of Wetland Restoration was asked 15 for comments. 16 Q Can you back up for just a moment and identify the 17 individuals that you were just referring to as opposed to 18 just saying that bureau. 19 A I will try. Bart Bibler worked for me, and was 20 formerly in charge of the section that did the SWIM 21 review. 22 Q Okay. 23 A Comments, drafts or requests for comments were 24 sent to people identified by the divisions as SWIM Plan 25 commentors. We had a great deal of problem with that, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 33 1 keeping that list up, accurate, in not every instance was 2 the person on the list, the person or persons who ended up 3 commenting. 4 In the particular district office Herb Zebler was 5 considered to be the prime person. He may have accepted 6 comments from other people in the District as well, but he 7 was the prime commentor. 8 I do not know who in the Bureau of Wetland 9 Resource Management was the commentor in this particular 10 case or in fact if they responded, and I do not know the 11 specific name of the Everglades person in the Division of 12 Water Facilities. 13 Q Okay. Are you aware of any listing of the persons 14 who were responsible for commenting on this plan? 15 A We tried to maintain a listing for the State as a 16 whole, each water management district, and tried keep that 17 up-to-date, and periodically update that, and those lists 18 were circulated. 19 Q Okay. Could we obtain a copy of that list? I am 20 not aware that any one has been produced to us at this 21 point. 22 MR. HETRICK: Which list are you talking about? 23 MR. HYDE: A list of the persons who were the 24 commentors on particularly just the Everglades SWIM 25 Plan. I am not concerned about the other SWIM Plans. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 34 1 It would be useful for me to know just who those 2 persons were. 3 MR. HETRICK: So it was an Everglades SWIM Plan 4 list? 5 THE WITNESS: No, it was a list for the State as a 6 whole. 7 MR. HYDE: Okay. 8 MR. HETRICK: A list of participants? 9 THE WITNESS: Uh-huh. 10 MR. HYDE: Okay. 11 BY MR. HYDE: 12 Q Did you go through a similar exercise when 13 determining whether the SWIM Plan was consistent with the 14 provision of rule 17-302? 15 A That was, I mean, when they came in for the, when 16 the draft came in for the first formal review, all of those 17 particular issues were to be looked at -- 18 Q Okay. 19 A -- in compliance with the State comp plan, 17-40, 20 17-43, and this would have subjective decisions about 21 whether or not the plan in general would result in 22 significant improvement and whether it was implementable. 23 Q Okay. When did you first become involved in the 24 SWIM Planning process for the Everglades SWIM Plan? 25 A I first became involved in the SWIM process as A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 35 1 soon as the statute passed. I think inherently the way 2 that that process evolved affected the development of the 3 Everglades SWIM Plan. One of the earliest, I guess, 4 considerations had to do with the list, the priority list 5 that the water management district produced and how the 6 Everglades was to be categorized, broken up, segmented and 7 listed. 8 Q Were the water conservation areas a part of that 9 priority list that the District submitted to DER? 10 A The lists were submitted and then were to be 11 updated, and there were changes in opinions and how, you 12 know, how best to approach it as the lists were evaluated 13 and were drawn. The Everglades was not a priority water 14 body in the statute, so its development could not take 15 place no matter whether it was segmented as the water 16 conservation areas, individually or collectively, the water 17 conservation areas and the park, or the park separately, 18 the ESA versus the water conservation areas collectively or 19 separately. All of those considerations were discussed 20 periodically as people thought about updating their list, 21 but they had to develop the Lake Okeechobee, the Biscayne 22 Bay, and the Indian River Lagoon SWIM Plans before they 23 could even approach that. 24 Q Do you know why those areas weren't considered 25 priorities while the others were by the Legislature? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 36 1 A I have no idea why the Legislature made those 2 choices. 3 Q Okay. When did you first become involved in the 4 review of the Everglades SWIM Plan or its earlier drafts as 5 opposed to general involvement in the SWIM Planning 6 process? 7 A I think that we first discussed something that 8 would be, you know, akin to some of the earlier contract 9 work for the Everglades SWIM Plan immediately after the 10 approval of the Lake Okeechobee plan. It seemed to flow 11 naturally that they wanted to do the Upper Kissimmee Basin 12 first, since they wanted to look at it from the watershed 13 beginning down through, but clearly the Lake Okeechobee 14 technical advisory committee was finding lots of problems 15 and was going to highlight the Everglades, and it was a 16 matter of discussion of how thin could the water management 17 district staff be spread, what was inevitably going to take 18 up their time as opposed to what would be their 19 professional recommendations for a logical process. 20 And I think we started discussing basically taking 21 the low tech work and using that to build an Everglades 22 SWIM Plan immediately. I honestly can't tell you what year 23 or date that was, I can only relate it to a sequence of 24 things that were happening. 25 Q Okay. Well, do you recall when you were first A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 37 1 involved in the review of the SWIM Plan that was submitted 2 to the Department in 1990? 3 A I probably didn't actually see or have any pieces 4 of paper in my hands until, you know, late '89 early '90. 5 I was not in the habit of looking at, you know, contracts 6 that were let to do the preliminary work. The staff 7 handled approvals of those. There were not any specific 8 documents that would have come up to me other than in a, 9 you know, sort of a classic, by the way we have, this kind 10 of thing. I certainly wasn't involved in any decision- 11 making until some of the early drafts indicated to the 12 staff that the draft that was going to be submitted for 13 formal preliminary approval was not going to meet some of 14 their expectations. 15 Q When were these early drafts submitted as near as 16 you possibly can determine? 17 A I would estimate '89, late '89. 18 Q Why didn't these early drafts meet the staff's 19 expectations? What was the staff's concerns in that 20 regard? 21 A The primary concern that I was involved in 22 grappling with was the fact that the plan as drafted dealt 23 in great detail with the issue of how much phosphorous and 24 how to eliminate phosphorous levels that were being 25 discharged into the water conservation areas and did not A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 38 1 adequately address other water quality standards. 2 And there were several in particular -- mercury, 3 jumps to mind -- that the plan practic -- you know, for 4 practical purposes ignored other water quality standards 5 issues which many of us felt needed to be assessed and 6 addressed in a long range plan. 7 Q Okay. Do you recall what some of these other 8 standards were besides the mercury standard? 9 A Mercury, specific conductance, iron, pesticides in 10 general -- seems like there were a few more. Those are 11 the ones that I recall. 12 Q Chlorides? 13 A Chlorides, yes. 14 Q Dissolved oxygen? 15 A Well, I think most of us believe that dissolved 16 oxygen is related to the nutrient loading and there was 17 little expectation that you would see that. It was more 18 the conservative metals and pesticides. 19 Q What do you mean by conservative metals? 20 A Well, the things that don't readily degrade, that 21 in fact probably accumulate as the result of the water 22 going through the ground over and over again. 23 Q Okay. Were those other water quality standards 24 thought to be violations, to be, well -- let me start over 25 again. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 39 1 Did the Department have some fear or concern that 2 there were violations of these other listed water quality 3 standards in the Everglades Protection Area? 4 A Yes. 5 Q Okay. Do you know what the basis was for these 6 concerns? 7 A Well, some of it was projected based on concerns 8 in Lake Okeechobee, others were related to the data that 9 the water management district and National Park Service had 10 developed in terms of the discharge into the Everglades 11 National Park. 12 Certainly we had evidence of mercury building up 13 in fish in particularly high levels in the Everglades. 14 We recognized that there was a dearth of specific 15 data and that most of the data that the water management 16 district had collected was at water control structures 17 which may or may not be indicative of the violations in the 18 water conservation areas themselves, but the fact that we 19 seem to be the only parties particularly concerned with 20 this issue was of great concern to us, and in fact we had a 21 number of conversations with the Water Management District 22 in which, and this may be one of the documents that I 23 actually did help work on in which was some language that 24 they were to include in the plan that would outline a 25 monitoring strategy and some time tables to get a better A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 40 1 evaluation of water quality standards, levels and changes 2 in the area and a commitment to do something about them 3 should we agree that there were problems. 4 Q In evaluating whether there were violations of 5 these other water quality standards did the Department make 6 any determinations or try to establish why those violations 7 were occurring? In other words did it try to determine 8 what the cause or the causes of those violations were? 9 A Well, I would not say that the Department 10 formulated a specific departmental opinion, and there were 11 a number of different opinions from various staff members 12 and from outside people in general that had to do with the 13 same kinds of effects we see statewide where groundwater or 14 water from another surface water body is not necessarily 15 the same as the water body to which it is being discharged 16 regardless of whether or not it is altered by agricultural, 17 forestry, municipal urban activities in the area, and we 18 were aware that there were extensive water alterations in 19 the area, so probably the most popular hypothesis was that 20 either water directly from the lake or water that had been 21 passed through agricultural operations in the EAA was 22 contributing various and sundry chemical constituents that 23 were not naturally in the water conservation areas or the 24 park and were contributing to changes in both chemical 25 levels and biological levels. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 41 1 Q Do you understand the difference between water 2 quality criteria and water quality standards? 3 A I believe so. 4 Q What, can you articulate what that difference is? 5 A Water quality standards are, is a more broad term 6 encompassing beneficial uses, water quality criteria, 7 antidegradation policies, and criteria that are specific 8 statements of levels of compounds or characteristics of a 9 particular ambient water believed to be necessary in order 10 to meet the designated use. 11 Q Okay. When you stated that the early drafts of 12 the plan did not meet the staff's expectations, were there 13 any other concerns, other than the water quality standards 14 we have just gone over, regarding mercury, iron, specific 15 conductance, pesticides, chlorides, conservative metals and 16 the like? 17 A There were sort of generic concerns about timing 18 -- was this the best they could do? Could we do it any 19 faster? 20 There were sort of concerns that there were 21 inadequate considerations given to making sure that water 22 volume was protected from withdrawals from the cities, that 23 we didn't integrate enough consideration fast enough on 24 integrating activities of the Corps and their designed 25 memorandum change process. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 42 1 There were some concerns that we didn't 2 evaluate, well, no, that's not the right word, that we did 3 not broaden the reach of the programs sufficiently to take 4 into consideration the Florida Bay impacts, and there 5 probably were others that were either resolved or which the 6 staff felt were not significant enough to fight for by the 7 time it reached me. 8 Q Did you or the DER staff express to the District 9 personnel any concerns about how the SWIM Plan was dealing 10 with the hydroperiod question in the water conservation 11 areas? 12 A Well, we debated the hydoperiod issue extensively, 13 and often. I mean, there were many meetings that I didn't 14 go to, but there were lots of meetings with various 15 consulting engineering firms, with the District staff, and, 16 and that issue had been hashed over repeatedly. 17 It is my opinion that while, you know, some people 18 probably felt that the issue could have been dealt with 19 better, that this was the best that could be done at this 20 point in time, and it was far better than anything else 21 that we had ever done. 22 Q Okay. Why would DER conclude it was the best that 23 could be done? 24 A Well, I think that there were technical 25 limitations, there were unknowns about the changes and A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 43 1 volumes from year to year, there were debates over 2 transpiration losses, that there were data gaps that were 3 in the process of being filled, and that we had worked on 4 the issue of trying to understand and come to some ballpark 5 figures on what kind of hydroperiod we should, you know, 6 try to establish that was better for the environment, and 7 that we had commitments to continue to work on that, and 8 that that issue had not been addressed in many other 9 attempts at improving the situation in the Everglades, and 10 that we were on the track that would lead to the right 11 answers to this. 12 Q Okay. You stated that there were some technical 13 limitations in this regard. What would be an example of a 14 technical limitation? 15 A Oh, differences of opinion on what the proper 16 methodology for measuring ET losses would be. 17 Q When you say ET you're referring to? 18 A Evapotranspiration. 19 Q Okay. 20 A Technical disagreements on the accuracy of very 21 low volume measurements being made at various control 22 structures, USGS was called in to review the data and 23 certain other parties felt that that particular technique 24 for measuring volumes lost accuracy at the low volumes 25 which we had at the time. These are, you know, sort of A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 44 1 typical technical disagreements in these kinds of fields, 2 they were not anything particularly unusual, but perhaps of 3 more critical nature. 4 Q When you're talking about these very low volumes, 5 are you referring to volumes of water generally, or are you 6 referring to water quality parameters, such as phosphorous 7 for example? 8 A No. 9 MR. SAXE: Objection to form. 10 BY MR. HYDE: 11 Q You may go ahead and answer. 12 A When I say the low flows in this context we were 13 previously discussing, the issue of water quantity and 14 reestablishment of hydroperiods, and I was speaking of 15 measuring volumes that passed through particular water 16 controlled structures or other measuring devices -- 17 Q Okay. 18 A -- in the system. 19 Q You stated that there were certain unknowns that 20 prevented a complete understanding of that issue, can you 21 identify what some of those were? 22 A What was the natural cycle of hydraulic changes in 23 the Everglades? You know, historically were there very low 24 periods and under what timing, how often and of what 25 duration, and how much did those, what were the critical A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 45 1 levels that would affect various changes, and if there was 2 a change effected, how much of a counterbalancing change 3 was necessary in order to reestablish it, you know, that 4 the refinement of cause and effect, various biological, 5 chemical, physical changes in relationship to water 6 volumes, flow, timing. 7 Q What, if anything, does the adopted SWIM Plan 8 propose to do regarding this issue of what the natural 9 hydroperiod cycle of the Everglades was? 10 A There are research components ongoing in the plan 11 that address both further research in the changes in water 12 volume as well as changes in water chemistry, which may or 13 may not be related to hydrology. 14 Q Does, is there some relationship, by your lights, 15 regarding hydroperiod and the existence of water quality 16 violations within the water conservation areas? 17 MR. SAXE: Objection to form. 18 THE WITNESS: I think there are, at the very 19 least there is the issue of where you get the water 20 from, and whether that water has, if the water is 21 sufficiently different than what was naturally there, 22 whether it takes more or less to make a change. The 23 specific example I would give you has to do with 24 specific conductance. Generally speaking, surface 25 waters in Florida are fairly low in specific A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 46 1 conductance. If they are used in an agricultural 2 operation where they're circulated through the soil 3 horizon and pick up salts, while it may be beneficial 4 to increase water flow to certain parts of the 5 Everglades, that benefit may be offset if specific 6 conductance is so high that it results in other kinds 7 of changes. 8 So it is not just a question of whether you change 9 the direction, timing, volume of water, it is what's in 10 that water and does that level make a difference in 11 your decision as to whether you're making an 12 improvement or not. 13 BY MR. HYDE: 14 Q Okay. I believe you also noted that the 15 Department had some unaddressed or unknown concerns 16 regarding evapotranspiration. What are those concerns, 17 just a general lack of knowledge or is it something more 18 particular? 19 A I can't give you lots of technical aspects. It is 20 my understanding that there are two or three sort of 21 standard ways of measuring evapotranspiration, not all of 22 which give the same results. These are methods that are 23 used at least all over the Southeast, perhaps all over the 24 country. This is, you know, is another classic, very 25 common kind of circumstance, and it is a question to be A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 47 1 resolved in the future as to whether there are different 2 circumstances where one known method is better than 3 another. 4 Q Who would be the appropriate person, at least, at 5 the Department, to address such a question to? 6 A I would start with Mr. Bibler. 7 Q Okay. Anyone else that you can -- 8 A I don't know. 9 Q -- recall? 10 A I don't know. 11 Q I believe you also mentioned that there were some 12 data gaps, regarding the Department's hydroperiod concerns. 13 What are these data gaps that you are referring to? 14 A Well, it is efficient to measure flow in channels 15 and at places that have access, so you will see most of the 16 information available regarding flow at water control 17 structures that the water management district or the Corps 18 maintains? That gives you a picture of what's happening at 19 those sites, but that is very different from the kind of 20 natural sheet flow kind of hydroperiod believed to be 21 natural in the Everglades. There are interests in how much 22 of a difference various man-made and natural features of 23 the Everglades affects the water flow, and there probably 24 always will be. There are also a great number of questions 25 about how much water quality criteria levels change as that A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 48 1 water moves through these various features. 2 Q How would the Department or how would you propose 3 the Department or the District go about filling in these 4 data gaps regarding this lack of sheet flow type of 5 information? 6 A Well, you see a number of monitoring kinds of 7 activities going on where you see, I mean, in terms of the 8 sheet flow thing, it may be that you will have to project 9 because you don't want to go out there and run roads 10 through the Everglades and you don't want, you don't want 11 to make things change any more than necessary, but you can 12 do some elevation work, and you see, I think a distinct 13 increase from when we started this until now, and the 14 number of people and places the data is being collected. 15 Q Did the District staff respond positively to the 16 expressions of concern raised by you and the DER staff 17 regarding the early drafts, or the deficiencies of the 18 early drafts? 19 A We had great cooperation with them, I think it 20 took them longer to understand our concern about other 21 water quality parameters than anything else, and in the end 22 even that was not a problem. 23 Q Why do you think it took them longer to appreciate 24 the Department's concerns in that regard? 25 A It is my personal opinion that they were just A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 49 1 overloaded trying to take care of the priority issues. 2 Q Okay. Did you regard these issues as having been 3 taken care of by the time the District submitted the draft 4 which is now the subject of this proceeding? 5 A Yes. 6 Q Okay. Are you aware of some litigation that was 7 instigated by the U.S. Attorney's office for the Southern 8 District of Florida in which the Department and the 9 District were sued in federal court for failure to violate, 10 or failure to ensure compliance with State water quality 11 standards in the water conservation areas? 12 A Yes. 13 MR. SAXE: Objection to form. 14 THE WITNESS: Well, whatever the form was, there 15 was a lawsuit filed by the U.S. Justice Department. I 16 am not a lawyer and do not know the specifics of all 17 the places, times and parties. 18 BY MR. HYDE: 19 Q Okay. Did you ever become involved in that 20 litigation? 21 A I was very peripherally involved. 22 Q Okay. What did your peripheral involvement 23 concern, at least prior to the instigation of settlement 24 negotiations between the District, DER and the U.S.? 25 A I was involved in a couple of discussions with A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 50 1 Dale Twachtmann where we argued extensively over whether or 2 not water control structures were simply facilities that 3 transported water from one side to the next or whether they 4 could be considered sources of pollution in and of 5 themselves. 6 Q Which view did you take? 7 A I took the belief that they were part of a 8 constructed alteration that was permanent, and were 9 therefore stationary sources of pollution -- 10 Q Okay. 11 A -- at least when there was information to 12 document that they had changed either the physical, 13 chemical or biological nature to the extent that water 14 quality standards were. 15 Q Do you recall what position Secretary Twachtmann 16 took in that regard? 17 A It was Secretary Twachtmann's opinion that they 18 were simply, I think the term was post offices, and that 19 they simply transferred whatever was on one side to the 20 other side and that the ultimate sources were the property 21 owners that abutted or contributed pollutants to the water 22 in the system. 23 Q Why did this debate about the water control 24 structures take place at all? 25 A Well, we had issued permits to the water A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 51 1 management district for their structures that discharged 2 into Lake Okeechobee as part of a settlement of an 3 enforcement action to resolve improvements in Lake 4 Okeechobee, and we had issued, or we had dealt with 5 permitting structures in the upper St. Johns as the result 6 of documenting water quality violations from water being 7 pumped from agricultural activities into a surface water 8 body, and it appeared that that was the obvious way of 9 resolving another circumstance where you had water quality 10 violations and you had an entity that at least was 11 responsible for putting that water in there, whether they 12 were responsible for the quality of the water or not, and 13 that it seemed like a logical way to approach the global 14 problem that had previously escaped the permitting process 15 for dealing with these problems. 16 I think a great deal of it had to do with what 17 good did it do for the environment if you simply 18 transferred a problem from a State entity to a regional 19 entity, i.e., the water management district. What gave us 20 the impression that they would solve the problem or that we 21 would make any substantial difference in the environment by 22 doing this, and was not issuing them a permit that they 23 would ultimately have problems complying with really 24 solving any kind of problem. 25 Q Do you regard all of the water control structures A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 52 1 in the Everglades Protection Area to be stationary sources 2 of pollution that would require a Department permit? 3 A Well, that was the $64,000 question. I don't 4 think I am ready to say that. I think where you can show 5 that they're definitely transferring a pollution problem 6 that a permit is one of perhaps a number of appropriate 7 ways to go about addressing, resolving that problem. 8 Q Could you identify a water control structure or 9 structures that fall within the ambit of that type of 10 structure that would require a permit? 11 A Structures that discharge from one in a completely 12 different kind of environment, i.e., from water that's 13 coming from EAA into the water conservation areas I think 14 falls into at that purview. 15 Q Would that be like the S-5 structure? Are you 16 familiar with the various numbering systems that are used 17 down there? 18 A I am vaguely familiar with it, but enough to know 19 that I wouldn't dare trust citing one without a map in 20 front of me. 21 Q Okay. Do you know where the S-12 structures are 22 located? 23 A Not offhand. 24 Q Well, just assume that the S-12 structures are 25 between water conservation area III and the park, would you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 53 1 consider those to be structures that would require a permit 2 under the scenario you just outlined? 3 A I think that the park service believes that they 4 are, and has sufficient grounds to at least suggest that 5 they are potential sources and that that would be an 6 appropriate way of resolving any conflicts. 7 Q Do you believe they are? 8 A I think they're potentially one. 9 Q Okay. Do you know whether the Department has 10 taken any formal position in that regard? 11 A No. 12 Q Who would be responsible for making that kind of a 13 call? 14 A Well, this is an area of evolving policy. I mean, 15 we don't really have the resources to go in and permit 16 every single water control structure in the state, so I 17 think you have to make some priorities based on 18 expectations of being a potential pollution source, and one 19 of the ways of resolving that was done for us, which was 20 bypassing the special statute that has to do with the 21 Everglades permit. That's perhaps the alternative way 22 then, rather than using the Department routine permitting 23 structure. 24 Q Okay. Ms. Dow, would you like to take a break? 25 A I would love to take a break. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 54 1 Q I forgot do tell you in my introductory remarks 2 that if you ever need to take a break, please tell me. 3 (Brief recess.) 4 MR. HETRICK: Bill, on the record. Here is a 5 copy of a list of participants. 6 MR. HYDE: Okay. 7 MR. GREEN: Thank you. 8 MR. SAXE: Thank you, Keith. 9 BY MR. HYDE: 10 Q Roxane, before we took our break, I believe you 11 had mentioned that some people associated with the 12 Everglades National Park felt that the S-12 structures 13 should also be permitted, do you recall that -- 14 A Uh-huh. 15 Q -- observation? 16 A Uh-huh. 17 Q Do you know who those people were? 18 A Well, we didn't have any actual formal request to 19 do that, they had an informal -- well, that's not really 20 true. They had an agreement with the water management 21 district, and they kept referring to monitoring done there 22 in the context of a permit. They had an agreement on what 23 levels of constituents would be there. They insisted on 24 calling them water quality standards. The Department was 25 not a party to that, and yet it kept coming up that, you A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 55 1 know, one of those issues that somehow everybody else 2 expected us to be in, but we did not, we were not focusing 3 on that particular structure or -- to us, whatever happened 4 down there was a result of what happened upstream, and we 5 were concentrating on interests and inquiries upstream. 6 Q Perhaps I didn't understand your comment, but how 7 did that discussion necessarily involve a position by the 8 park that these S-12 structures should be permitted? 9 A The park believed that it was their right to 10 expect a certain amount, or certain quality of water to 11 come into the park, and they used as the base line for that 12 water quality standards, and in the context of whether the 13 Department ought to require permits for water control 14 structures in general, that was one of the kinds of 15 arrangements that had been made among people who were 16 interested, and that's the only relevance. 17 Q Okay. Was it the park director that -- 18 A I am not aware that anybody actually formally 19 asked us or took any kind of steps to force us to do that. 20 Q So you just regard that as being a position of the 21 park without knowing specifically who was pushing the 22 point? 23 A I mean this line of questioning started in the 24 context of whether or not structures should or should not 25 have permits, and if they didn't have permits, these other A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 56 1 kinds of associations or obligations or agreements were 2 being formulated which took the nature of a permit without 3 being a permit. So that was perhaps an option for dealing 4 with whether or not they ought to have permits or perhaps 5 an indication that if these kinds of gentleman's agreements 6 did not work out we would be pressured to get permits. 7 Q Okay. Were you and Secretary Twachtmann the only 8 people who were involved in this debate over whether the 9 water control structure should be permitted? 10 A Certainly not. 11 Q Who else by your recollection was involved in that 12 internal debate? 13 A Well, Dan Thompson and probably others of his 14 lawyers were involved, both the division directors of water 15 facilities and water management, I believe Randy Armstrong 16 was there at the time for the Division of Water Management 17 and Richard Harvey for water facilities. 18 Q Do you recall what position those individuals 19 took? 20 A No, I am not sure any of us actually had hard and 21 fast positions. We discussed and evolved opinions back and 22 forth as the discussion went on. I am sure that he 23 discussed this issue with others. 24 Q When you say he, are you referring to Secretary 25 Twachtmann? A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 57 1 A Secretary Twachtmann. 2 Q Okay. Other than this internal debate about the 3 permitting of the these water control structures, what 4 involvement did you have in the federal litigation prior to 5 the initiation of the settlement discussion between the 6 parties in that case? 7 A I don't believe I had any direct involvement. I 8 mean, I can't think of any circumstance in which I 9 knowingly was involved. I mean, it was never somebody 10 sitting down, I mean, I got copies of the filings and, you 11 know, there was, and I read the newspaper articles, but you 12 know, we didn't sit down and say, you know, well, Roxane, 13 what do you think we ought to do about this? 14 Q Why did you get copies of the filings in the case? 15 Are they just sort of a general information circulation 16 type thing? 17 A Yes, all of us that had been involved in the 18 Everglades were certainly curious about, you know, what we 19 were being accused of not doing, and there was certainly 20 high priority given to what was being perceived at least by 21 the media as, you know, a terrible problem, and for those 22 of us who know the history and know that for 30 years now 23 we have been trying to save the Everglades, we were 24 obviously interested in the next step. 25 Q Okay. Were you called upon to give any feedback A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 58 1 regarding any of these filings that you received? 2 A We had some conversations in the halls, and we 3 debated among ourselves, you know, certain aspects of it. I 4 think it was more of a, you know, sort of a digesting of 5 the comments and the reassessing of how that related to 6 what we thought we were doing. We did not have any, I was 7 not a party to any general or any kind of meeting where we 8 sat down and went through it and said, you know, what 9 should we do? Secretary Twachtmann was particularly 10 appalled and took it very personally, and I think we were 11 sensitive to trying to assure him that we thought we had 12 done the best that we could do, and if other people thought 13 otherwise we would just have to cope with that the best we 14 could as opposed to any deliberate attempt to not address 15 these issues. But generally, he made his own decisions 16 about how to approach the suit without benefit of my 17 opinion, at least directly. 18 Q Do you know why he was appalled by the direction 19 that this suit took? 20 A Well, I think that he firmly believed that the 21 governmental agency shouldn't have been sued, that the 22 individual land holders perhaps, but certainly not the 23 governmental entities, and he was appalled that they were 24 using what he perceived to be State authorities and State 25 laws for a federal action. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 59 1 Q Did he express these views to you personally or is 2 that just the general understanding that you have? 3 A I mean, I heard him complain about why he should 4 be stuck with this problem. 5 Q At some point did you become aware of any 6 settlement negotiations being conducted by the Department, 7 the District and the U.S. Attorney's Office? 8 A Well, I was certainly aware of the Governor's 9 position during his campaign and his subsequent action, and 10 Ms. Browner's dedication to implementing the Governor's 11 stated policy when she took over. 12 Q When did you first become involved, yourself, in 13 any settlement discussions or negotiations? 14 A I was not involved personally in any settlement 15 discussions or negotiations. She selected people to do 16 that who were not the prime pushers of the SWIM Plan or 17 primarily involved previous to that. I suppose because she 18 thought that they would be more independent and more 19 open-minded and less personally involved than Bart and 20 myself and others in the Bureau, in the Division that had 21 been pushing the process prior to that point in time. 22 Q So just to be clear, you had no involvement in the 23 discussions regarding the settlement agreement or its 24 technical appendices? 25 A Right. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 60 1 MR. SAXE: Objection as to form. 2 THE WITNESS: I guess my qualification would be 3 there were occasions where questions would be asked of 4 a general nature of the staff which I presumed 5 contributed to the background information of Dan 6 Thompson and Richard Harvey and Carol, but they were 7 not put in the context of I need to know this because, 8 they were just sort of general issues of where things 9 were or had we discussed that or was this an issue that 10 had been brought up before. It was all very hazy, and 11 in fact both Bart and I took it rather personally that 12 we weren't involved in the settlement negotiations, and 13 were a little offended that we weren't more involved. 14 But we, you know, if we were asked questions that 15 contributed to it, it was definitely in a very general 16 context. 17 BY MR. HYDE: 18 Q Okay. Can you give me a representative example of 19 the kind of general questions that might have been posed to 20 you during those discussions? 21 A Oh, we were asked things like had we considered 22 the nutrient uptake ability of projects like the Lake 23 Apopka Restoration Project in consideration of whether or 24 not the proposed treatment facilities in the Everglades 25 would or would not work at the scale and rate proposed. We A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 61 1 were asked, general kinds of questions like, well, did you 2 think about these people over here have done this, you 3 know, in general, I mean, there was nothing new. We had 4 always known about everything and considered everything. 5 Q Why did you think you should have been involved in 6 those discussions? 7 A Oh, the typical staff reaction of, you know, those 8 of us who had been working on it and knew the most should 9 obviously have been the ones that were, you know, at the 10 time it was a matter of who knew the most in retrospective, 11 so obviously it should be somebody who could make sure that 12 we had done the best job that we could and could look at 13 things in a different perspective and in a different 14 manner. At the time we were concerned that the people 15 doing the negotiation were inadequately prepared and 16 unknowledgeable and would make an error that would undo 17 years and years of our work. 18 Q What did you fear of your years and years of work 19 might be undone as a result of these discussions? 20 A Mostly delay, that we would have to go around the 21 clock again to prove that there was too much phosphorous in 22 the water conservation areas for their own good. 23 Q Did you have any concerns as to how the water 24 quality standards that were at issue were being interpreted 25 in light of prior agency policies regarding those A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 62 1 standards? 2 A Well, not in those words, no. 3 Q Or were you concerned about the construction of 4 the water quality standards and the context of the 5 settlement discussions? 6 A No. 7 Q Did you believe that the Department was taking a 8 new position or developing a new policy or policies 9 regarding the interpretation of the water quality standards 10 at issue in that litigation? 11 A I had no indication that they were doing that. 12 Q Okay. Did anyone ever expressly advise you of the 13 reasons why you and Mr. Bibler, for example, had been 14 excluded from those settlement discussions? 15 A We were told that it was very critical that this 16 be done in an atmosphere of faith and trust and that, you 17 know, that the people who, a small a very small group of 18 people and people that Carol had selected, and it was 19 nothing about, it said nothing about our work or our 20 interest or our level of trust, it simply had to do with 21 the fact that, you know, only a couple of people were going 22 to be involved in order to make sure that all sides knew 23 exactly who they were dealing with and had the open faith 24 and confidence to be able to sit around the table 25 together. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 63 1 Q Was that limitation also due to a desire to keep 2 those negotiations as confidential as possible? 3 A I can only presume that. 4 Q Okay. Other than the reasons you have just 5 expressed, do you know of any other reasons why you and 6 Mr. Bibler had been excluded from those discussions? 7 A No. 8 Q Okay. What are the State water quality standards 9 that you reviewed to determine whether the SWIM Plan was 10 consistent with DER's policies? 11 A Well, in form we would have gone through all of 12 them, we would have looked at the beneficial use, we would 13 have checked down the list of criteria to see if there were 14 ones that anyone suspected. 15 Q Were there particular water quality standards that 16 you were concerned with? Let me just explain my question a 17 little bit, that might make it clearer. There is, it looks 18 like there is literally hundreds of water quality standards 19 found in 17-302, yet in the context of the SWIM Plan we're 20 really only dealing with a relatively discrete number. Do 21 you know which of those State water qualities standards 22 were of particular concern regarding the SWIM Plan? 23 A Well, I think when the staff goes down through the 24 list, and if I recall there is more in the nature of 150 or 25 so that would apply in these waters, the technical staff A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 64 1 knows which ones have to do with industrial processes that 2 we do not expect to find in this particular area, versus 3 those that are related to agricultural activities or urban 4 stormwater runoff, the kinds of things that you might 5 suspect. 6 We also knew those that were at issue in 7 Lake Okeechobee, so those are the ones that kind of 8 percolated to the top, that that was part of the issue 9 about a more complete assessment of water quality 10 standards, that even those that we did not suspect, it 11 probably wouldn't hurt to be able to officially rule out 12 and that left some in the middle which may or may not be a 13 problem, and that's why we were so insistent upon having a 14 phase of the plan that would include additional monitoring 15 and assessment of those issues. So those constituents that 16 are either in the well water in the area or in the lake or 17 used in the agricultural operation came to the forefront, 18 and those that are related to chemicals produced in 19 cleaning satellite parts or something were not. 20 Q Do you recall which provisions were of particular 21 import regarding the SWIM Plan? 22 A Well, I think the handful of criteria or classes 23 of criteria that I mentioned previously and then there was 24 the third component which was the antidegradation issue. 25 All of those were reviewed, we all agreed that the A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 65 1 phosphorous issue was of prime importance and clearly ought 2 to be given the bulk of weight in terms of the actual plan, 3 that additional provisions needed to be made to get a 4 better consensus of the relative import of other additional 5 water quality criteria and whether or not we had to make 6 efforts to address levels, or volumes, or other physical 7 parameters that might relate to their levels. 8 Q When you mentioned the phosphorous concerns of the 9 Department, are you really referring to the narrative 10 nutrient rule? 11 A Yes, primarily, the narrative nutrient rule -- 12 Q Okay. Are there -- 13 A -- and the balance of flora and fauna. 14 Q -- any other rules that -- 15 A The way that phosphorous affects the microbial 16 community that may affect the assimilation or the reduction 17 of assimilative capacity that may affect other water 18 quality standards. Dissolved oxygen certainly is a direct 19 indicator of nutrient activities. Those were the primary 20 standards that we, or criteria that we used. 21 Q What about the nuisance species standard? 22 A Nuisance species, I mean, to me the imbalance of 23 flora and fauna is the same in this particular case as 24 nuisance, but yes, certainly. 25 Q Why did you say those two standards are A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 66 1 essentially the same in this circumstance? 2 A Well, in this particular case, the outstanding 3 example of the imbalance has to do with cattails, which 4 most people consider a nuisance species as well in this 5 particular environment. 6 Q Were you concerned at all about the Departments 7 biological integrity standard? 8 A I don't remember that actually specifically coming 9 up, but, you know, if we sat down and wrote the laundry 10 list out, I presume that probably would make its way into 11 the list. 12 Q When you say you were concerned with the 13 beneficial use standard, what are you specifically 14 referring to there? 15 A The Class III title is recreation and maintenance 16 of a healthy, well-balanced population of fish and 17 wildlife. 18 Q Does recreation also constitute a part of that 19 standard? 20 A Yes, that's the first one. 21 Q Why would one be concerned with the designation of 22 those waters? 23 A Well, the whole point of the whole water quality 24 standard system is to protect the perceived benefits of the 25 water bodies to society at large, that particular, those A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 67 1 particular waters are so designated as Class III, so the 2 intent is to formulate a system that will protect and 3 maintain those uses. 4 Q Okay. So is it fair to say you interpret the 5 nuisance species rule or the narrative nutrient rule in 6 light of those beneficial uses that are designated for a 7 Class III water body? 8 A Uh-huh. 9 Q Okay. 10 A Yes, I am sorry. 11 Q How did the antidegradation provisions come into 12 play? 13 A Well, antidegradation was considered to be very 14 important by some parties. They believed that since the 15 water conservation area, one, was an outstanding Florida 16 water, that that would imply a more rigorous or a tougher 17 level of protection in perhaps activities to be addressed 18 in the SWIM Plan. 19 I was never convinced of that, but we certainly 20 looked through that argument extensively. 21 Q Why weren't you convinced of that argument? 22 A Outstanding Florida waters is based on the 23 presumption that the water quality the year before the 24 designation is the level to which you would protect above 25 and beyond water quality standards. A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 68 1 In this particular instance I am of the opinion 2 that Class III water quality standards imbalance of flora 3 and fauna, nuisance species, dissolved oxygen, the laundry 4 list is in fact the driving force that in order to protect 5 and maintain those standards would require more stringent 6 activities or changes than protecting the water quality the 7 year before the designation, because the way the water 8 quality the year before the designation is worded, it 9 includes all permitted or exempt sources, and I believe 10 that you can make a reasonable case that the discharges 11 from the agricultural return flows through the water 12 control structures were exempt at the very least at the 13 time, and therefore those discharges are allowable under 14 the definition of what the background water quality was at 15 the time. 16 Q Is it your opinion that those preexisting 17 discharges were exempt from the OFW base line 18 determination? 19 MR. SAXE: Objection to form. 20 THE WITNESS: The rule and the whole outstanding 21 Florida water category applies to things which get DER 22 permits, not water management district permits, not 23 local government permits, not Corps of Engineers 24 permits, but DER permits. 25 And they were not permitted in '78, they were not A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 69 1 required to get permits until recently, and that debate 2 about whether or not those things are exempt or should 3 have permits or maybe should have, but didn't got 4 resolved with the legislation that dealt with resolving 5 that issue. 6 I think that's an indication that there were good 7 arguments on all sides prior to that time. 8 BY MR. HYDE: 9 Q Well, what's your position as to the propriety of 10 whether the preexisting discharges should be excluded from 11 the base line determination? 12 A I think the weight of evidence is that we didn't 13 require permits for water control structures in 1978, and 14 it is only fair for them to assume that they were exempt. 15 Q Okay. Did the antidegradation water quality 16 standard have any other meaning in this SWIM Plan review 17 than the one that you have just discussed -- that is, its 18 relationship to the OFW standard? 19 A No, there was one other aspect and that had to do 20 with whether or not there would be any additional 21 requirements to be met or tests to be met should the 22 Everglades National Park become an outstanding national 23 resource water, and as far as I know that issue is still 24 not resolved. 25 Q How would the park's becoming an outstanding A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 70 1 national resource water have any relationship to the 2 Department's antidegradation water quality standard? 3 A Well, they're another tier to the antidegradation 4 portion of water quality standards. 5 We adopted a rule that's still on the books and 6 suggested water bodies to be made outstanding national 7 resource waters, but said that they wouldn't be, wouldn't 8 actually be effective until the Legislature concurred, 9 which is an issue that the Legislature has not been willing 10 to take up or at least take up very far. 11 There is a great deal of discussion and debate as 12 to what that is supposed to mean. We wrote a rule that we 13 felt complied with the requirements of the clean water act 14 in regard to a complete policy and antidegradation. EPA 15 still believes that it is insufficient in that it does not 16 adequately address the grandfathering provision for 17 existing discharges if their discharge results in an ever 18 increasing area of impact to water quality, and I believe 19 that this directly has to do with the amount, marching 20 cattail theory that if you have a discharge in which you 21 have the known impacts of the discharge and they're 22 consistent, that's the typical scenario and that's what we 23 were all thinking when we tried to formulate the words. The 24 question is is it appropriate to grandfather things that 25 have an impact that becomes broader as time goes on, A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 71 1 perhaps, or most likely because we didn't anticipate that, 2 is it appropriate to blanketly grandfather those. 3 EPA clearly thinks that it is not, and therefore 4 it has found that our existing rule does not adequately 5 meet all the requirements of the clean water act and is 6 asking us to resolve that issue in rule change. 7 Q Okay. Did you or the Department consider the, let 8 me start over again. 9 Are you aware of a group of water quality 10 standards that are generally referred to as the moderating 11 provisions of rule 17-302? 12 A Yes. 13 Q Okay. What is the purpose of those moderating 14 provision? 15 A When those moderating provisions were adopted in 16 1978 -- I think they were all, they're all originals -- the 17 Environmental Regulation Commission felt that they had 18 adopted an extremely challenging group of water quality 19 standards and were concerned that the system was too rigid 20 to deal with site specific examples, perhaps particularly 21 in Florida because of its semi-tropical nature, and they 22 wished to assure that there was some flexibility in the 23 program to address what they perceived would be very unique 24 circumstances, situations. 25 Q Okay. Are the, or is a site-specific alternative A-1 STENOTYPE REPORTERS TALLAHASSEE,FLA 904-224-0722 72 1 criteria an example of a moderating provision? 2 A Yes. 3 Q How does a SSAC work? 4 A A SSAC is a, SSAC, S-S-A-C, it's a process by 5 which a party can present evidence to the Department that 6 another criteria is appropriate for a specified portion of 7 a water body, based either on natural background, natural 8 circumstances, or in a man-induced, non-abatable 9 circumstance, and there are some tests or types of evidence 10 that are to be produced to the Department and the 11 Department can at its discretion agree that that's the case 12 and formally change the number for that specified portion 13 of the water body. That has to be approved by EPA as 14 well. 15 Q By that you mean, the individual determination or 16 establishment of a SSAC has to be likewise approved by EPA? 17 A EPA considers a SSAC to be a change in water 18 quality standards just as if we had changed a portion o